Gambar halaman

Wend. R. 87; 4 Mass. R. 595; 2 Kent, Com. 631, 3d ed. But it matters not in what words this is done, if it sufficiently appear to be in the name of the principal, as, for A B, (the principal,) C D, (the attorney,) which has been held to be sufficient. See 15 Serg. & R., 55; 2 East, R. 142; 7 Watts's R. 121; 6 John. R. 94. But see contra, Bac. Ab. Leases, S. 10; 9 Co. 77.-3. The execution must take place during the continuance of the authority; this is determined either by revocation, or performance of the commission. In general, an authority is revocable, unless it be given as a security, or it be coupled with an interest. 2 Esp. Cas. 365; Bac. Ab. h. t. The revocation (q. v.) is either express or implied; when it is express and made known to the person authorized, the authority is at an end; the revocation is implied when the principal dies, or, if a female marries; or the subject of the authority is destroyed, as if a man have authority to sell my house, and it is destroyed by fire; or to buy for me a horse, and before the execution of the authority, the horse dies. When once the agent has exercised all the authority given to him, the authority is at an end.

4. An authority is to be so construed as to include all necessary or usual means of executing it with effect. 2 H. Bl. 618; 1 Roll. R. 390; Palm. 394; 10 Ves. 441; 6 Serg. & R. 149; Com. Dig. Attorney, C 15; 4 Campb. R. 163; Story on Ag. § 58 to 142; 1 J. J. Marsh. R. 293; 5 Johns. R. 58; 1 Liv. on Ag. 103, 4; and when the agent acts, as such, within his authority, he is not personally responsible. Pal. on Ag. 4, 5.

Vide, generally, 3 Vin. Ab. 416; Bac. Ab. h. t.; 1 Salk. 95; Com. Dig. h. t., and the titles there referred to. 1 Roll. Ab. 330; 2 Roll. Ab. 9; and the articles, Attorney; Agency; Agent; Principal.

AUTHORITY, government, is the right and power which an officer has in the exercise of a public function to compel obedience to his lawful commands. A judge, for example, has authority to enforce obedience to his lawful orders. Domat, Dr. Pub. lib. 1, tit. 9, s. 1, n. 13.

AUTRE VIE. Another's life. Vide, Pur autre vie.

AUTREFOIS, is a French word, signifying, formerly, at another time; and is usually applied to signify that something was done formerly, as autrefois acquit, autrefois convict, &c.

AUTREFOIS ACQUIT, crim. lair, pleading, is a plea made by a defendant indicted for a crime or misdemeanor, that he has formerly been tried and acquitted of the same offence. See a form of this plea in Arch. Cr. PI. 90. To be a bar, the acquittal must have been by trial, and by the verdict of a jury on a valid indictment. Hawk. B. 2, c. 25, s. 1; 4 Bl. Com. 335. There must be an acquittal of the offence charged in law and in fact. Stark. Cr. PI. 355; 2 Swift's Dig. 400 ; 1 Chit. Cr. Law, 452; 2 Russ. on Cr. 41. The Constitution of the U. S., Amendm. Art. 5, provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. Vide, generally, 12 Serg. & Rawle, 389; Yelv. 205, a, note.

AUTREFOIS CONVICT, crim. law, pleading, is a plea made by a defendant indicted for a crime or misdemeanor that he has formerly been tried and convicted of the same. As a man once tried and acquitted of an offence is not again to be placed in jeopardy for the same cause, so a fortiori, if he has suffered the penalty due to his offence, his conviction ought to be a bar to a second indictment for the same cause, least he should be punished twice for the same crime. 2 Hale, 251; 4 Co.

394; 2 Leon. 83. The form of this plea is like that of autrefois acquit, (q. v.) it must set out the former record, and show the identity of the offence and of the person by proper averments. Hawk. B. 2, c. 36; Stark. Cr. PI. 363; Arch. Cr. PI. 92; 1 Chit. Cr. Law, 462; 4 BL Com. 335; 11 Verm. R. 516.

AUTREFOIS ATTAINT, crim. law, formerly attainted. This is a good plea in bar where a second trial would be quite superfluous. Co. Litt. 390 b, note 2; 4 Bl. Com. 336. Where, therefore, any advantage either to public justice, or private individuals would arise from a second prosecution, the plea will not prevent it; as where the criminal is indicted for treason after an attainder of felony, in which case the punishment will be more severe and more extensive. 3 Chit. Cr. Law, 464.

AVERAGE is a term used in commerce to signify a contribution made by the owners of the ship, freight and goods, on board, in proportion to their respective interests, towards any particular loss or expense sustained for the general safety of the ship and cargo; to the end that the particular loser may not be a greater sufferer than the owner of the ship and the other owners of goods on board. Marsh. Ins. B. 1, c 12, s. 7; Code de Com. art. 397; 2 Hov. Supp. to Ves. jr. 407; Poth. Aver. art. Prel.

Average is called general or gross average, because it falls generally upon the whole or gross amount of the ship, freight and cargo; and also to distinguish it from what is often though improperly termed particular average, but which in truth means a particular or partial and not a general loss, and has no affinity to average properly so called. Besides these there are other small charges called petty or accustomed averages. Vol. I.—14.

Such as pilotage, towage, lightmoney, beaconage, anchorage, bridge toll, quarantine, river charges, signals, instructions, castle money, piermoney, digging the ship out of the ice, and the like.

A contribution upon general average can only be claimed in cases where, upon as much deliberation and consultation between the captain and his officers as the occasion will admit of, it appears that the sacrifice at the time it was made, was absolutely and indispensably necessary for the preservation of the ship and cargo. To entitle the owner of the goods to an average contribution, the loss must evidently conduce to the preservation of the ship and the rest of the cargo; and it must appear that the ship and the rest of the cargo were in fact saved. Show. Ca. Pari. 20.

See generally Code de Com. tit. 11 and 12; Park, Ins. c. 6; Marsh. Ins. B. 1, c. 12, s. 7; 4 Mass. 548; 6 Mass. 125; 8 Mass. 467*; 1 Caines's R. 196; 4 Dall. 459; 2 Binn. 547; 4 Binn. 513; 2 Serg. & Rawle, 237, in note; 2 Serg. & Rawle, 229; 3 Johns. Cas. 178; 1 Caines's R. 43; 2 Caines's R. 263; lb. 274; 8 Johns. R. 237, 2d edit.; 9 Johns. R. 9; 11 Johns. R. 315.

1 Caines's R. 573; 7 Johns. R. 412; lb. 412; Wesk. Ins. tit. Average;

2 Barn. & Cress. 811; 1 Rob. Adm. Rep. 293; 2 New Rep. 378; 18 Ves. 187; Lex. Mer. Amer. ch. 9; Bac. Abr. Merchant, F; Vin. Abr. Contribution and Average; Stew on A v.; Ben. on Av.

AVERIA, cattle. This word in its most enlarged signification is used to include horses of the plough, oxen and cattle. Cunn. Diet. h. t.

AVERMENT,tn pleading, comes from the Latin vrificare, or the French averrer, and signifies a positive statement of facts in opposition to argument or inference. Cowp. 683,

684; Lord Coke says averments are twofold, namely, general and particular. A general averment is that which is at the conclusion of an offer to make good or prove whole pleas containing new affirmative matter, (but this sort of averment only applies to pleas, replications, or subsesequent pleadings; for counts and avowries which are in the nature of counts, need not be averred,) the form of such averment being et hoc paratus est teriftcare. Particular averments are assurances of the truth of particular facts, as the life of tenant or of tenant in tail is averred: and, in these, says Lord Coke, et hoc, &c, are not used. Co. Litt. 362 b. Again, in a particular averment the party merely protests and avows the truth of the fact or facts averred; but in general averments he makes an offer to prove and make good by evidence what he asserts. Averments must contain not only matter but form. General averments are always in the same form. The most common form of making particular averments is in express and direct words, for example, And the party avers or in fact saith, or although, or because, or with this, that, or being, &c. But they need not be in such words, for any words which necessarily imply the matter intended to be averred are sufficient.

See, in general, 3 Vin. Abr. 357; Bac. Abr. Pleas, B 4; Com. Dig. Pleader, C 50, C 67, 68, 69, 70; 1 Saund. 235 a, n. 8; 3 Saund. 352, n. 3; 1 Chit. PI. 308; Arch. Civ. PI. 163; Doct. PI. 120; 1 Lilly's Reg. 209.

AVOIDANCE, cccl. law. It is when a benefice becomes vacant for want of an incumbent; and, in this sense, it is opposed toplenarty. Avoidances are in fact, as by the death of the incumbent; or in law.

AVOIR DU POIS, comm. law, a French phrase which signifies "to

have weight." This kind of weight is so named in distinction from the Troy weight. One pound avoir du pois contains 7000 grains Troy; that is, fourteen ounces, eleven pennyweights and sixteen grains Troy; a pound avoir du pois contains sixteen ounces, and an ounce sixteen drams. Thirty-two cubic feet of pure springwater at the temperature of filly-six degrees of Fahrenheit's thermometer make a ton of 2000 pounds avoir du pois, or two thousand two hundred and forty pounds net weight. Dane's Abr. ch. 211, art. 12, § 6. The avoir du pois ounce is less than the troy ounce in the proportion of 72 to 79; though the pound is greater. Encyc. Amer. art. Avoir du pois. For the derivation of this phrase, see Barr. on the Stat. 2(16.

AVOW or ADVOW, practice, signifies to justify or maintain an act formerly done. For example, when replevin is brought for a thing distrained, and the distrainer justifies the taking, he is said to avow. Termes de la Ley. This word also signifies to bring forth any thing: formerly when a stolen thing was found in the possession of any one, he was bound advocare, i. e. to produce the seller from whom he alleged he had bought it, to justify the sale, and so on till they found the thief. Afterwards the word was taken to mean any thing which a man admitted to be his own or done by him, and in this sense it is mentioned in Fleta, lib. 1, c. 5, par. 4. Cunn. Diet. h. t.

AVOWANT, practice, pleading. One who makes an avowry.

AVOWEE, eccl. law. An advocate of a church benefice.

AVOWRY, pleading. An avowry is where the defendant in an action of replevin, avows the taking of the distress in his own right, or in right of his wife, and sets forth the cause of it, as for arrears of rent, damage done, or the like. Lawes on Pl. M. Hamm. N. P. 464.

AVULSION is where by the immediate and manifest power of a river or stream, the soil is taken suddenly from one man's estate and carried to another. In such case the property belongs to the first owner. An acquiescence on his part however, will in time entitle the owner of the land to which it is attached to claim it as his own. Bract. 221; Harg. Tracts, De jure maris, &c. Toull. Dr. Civ. Fr. tom. 3, p. 106; 2 Bl. Com. 262; Schultes on Aq. Rights, 115 to 138. Avulsion differs from alluvion (q. v.) in this, that in the latter case the change of the soil is gradual.

AWAIT, crim. law. Seems to signify what is now understood by lying in wait, or way-laying.

AWARD. It is the judgment of an arbitrator or arbitrators on a matter submitted to him or them. The writing which contains such judgment is also called an award. The qualifications requisite to the validity of an award are, that it be consonant to the submission; that it be certain; be of things possible to be performed, and not contrary to law or reason; and lastly that it be final. 1. It is manifest that the award must be confined within the powers given to the arbitrators, because if their decision extends beyond that authority, this is an assumption of power not delegated, which cannot legally affect the parties. Kyd on Aw. 140; 1 Binn. 109; 13 Johns. 187; lb. 271; 6 Johns. 13, 39; 11 Johns. 133; 2 Mass. 164; 8 Mass. 399; 10 Mass. 442; Caldw. on Arb. 98. If the arbitrators, therefore, transcend their authority, their award pro tanto will be void; but if the void part affect not the merits of the submission, the residue will be valid. 1 Wend. 326; 13 John. 264; 1 Cowen, 117; 2 Cowen, 638; 1 Greenl. 300; 6

Greenl. 247; 8 Mass. 399; 13 Mass. 244; 14 Mass. 43; 6 Harr. & John.

10; Hardin, 326 2. The award

ought to be certain, and so expressed that no reasonable doubt can arise on the face of it, as to the arbitrator's meaning, or as to the nature and extent of the duties imposed by it on the parties: an example of such uncertainty may be found in the following cases; an award directing one party to bind himself in an obligation for the quiet enjoyment of lands, without expressing in what sum the obligor should be bound, 5 Co. 77; Roll. Arbit. Q 4; again, an award that one should give security to the other, for the payment of a sum of money, or the performance of any particular act, when the kind of security is not specified. Vin. Ab. Arbitr. Q 12; Com. Dig. Arbitrament, E11; Kyd on Aw. 194; 3S. &R.340; 9 John. 43; 2 Halst. 90; 2 Caines, 235; 3

Harr. & John. 383; 3 Ham. 266

3. It must be possible to be performed, be lawful and reasonable. An award that could not by any possibility be performed, as if it directed that the party should deliver a deed not in his possession, or pay a sum of money at a day past, it would of course be void. But the award that the party should pay a sum of money, although he might not then be able to do so, would be binding. The award must not direct any thing to be done contrary to law, such as the performance of an act which would render the party a trespasser or a felon, or would subject him to an action. It must also be reasonable, for if it be of things nugatory in themselves and offering no advantage to either of the parties, it cannot be enforced. Kirby, 353.-4. The award must be final; that is, it must conclusively adjudicate of the matters submitted, 1 Dall. 173; 2 Yeates, 539; 4 Rawle, 304; 1 Cainns, 304; 2 Harr. & Gill, 67; Charlt. 289; 11 Wheat. 446; but if the award is as final as, under the circumstances of the case it might be expected, it will be considered as valid. Com. Dig. Arbitrament, E 15. As to the form, the award may be by parol or by deed, but in general it must be made in accordance with the provisions and requirements of the submission, (q. v.) Vide, generally, Kyd on Awards, Index, h. t.; Caldwell

on Arbitrations, Index, h. t.; Dane's Ab. ch. 13; Com. Dig. Arbitrament, E; lb. Chancery, 2 K 1, &c. 3 Vin. Ab.52,372; lVern. 158; 15 East, R. 215; 1 Ves. jr. 364; 1 Saund. 326, notes 1, 2, and 3; Wats. on Arbitrations and Awards.

AWM, or AUME. An ancient measure, used in measuring Rhenish wines; it contained forty gallons.

BACHELOR. The first in the arts and sciences, as bachelor of arts, &c. It is called in Latin Baccalamreus, from bacillus, a staff, because it was supposed that a staff was given by way of distinction, into the hands of those who had completed their studies; some, however, have derived the word from the French, bat chevalier, i. e. knights of a lower order.

BACK WATER. It is that water in a stream, which, in consequence of some obstruction below, flows back up the stream. Every riparian owner is entitled to the benefit of the water, as it subsists in its natural state. Whenever, therefore, the owner of an inferior property dams or impedes the water in such a manner as to back it on his superior neighbour, and thereby causes him an injury, he is liable to an action; for no one has a right to alter the level of the water, either where it enters, or where it leaves his property. 9 Co. 59; IB. 65 Aid. 258; 1 Wils. R. 178; 6 East, R. 203; 1 S. & Stu. 190; 4 Day, R. 244; 7 Cowen, R. 266; 1 Rawle, R. 218; 5 N. H. Rep. 232; 9 Mass. R. 316; 7 Pick. R. 198; 4 Mason, R. 400; 1 Rawle, R. 27; 2 John. Ch. R. 162, 463; 1 Coxe's R. 460. Vide Dam; Inundation; Water course; and 5 Ohio R. 322.

BACKING, crim. law, practice.

When a warrant has been issued for the apprehension of a person accused of some crime in one county, and he is not found there, the constable must make his return without arresting the accused, unless he can follow him into another county; but as the justice's warrant does not run into such county, he must procure some justice of the peace to endorse the same with his name, which is called backing a warrant; the constable may then execute it in such county.

BACKSIDE, estates. In England this term was formerly used in conveyances and even in pleadings, and is still adhered to with reference to ancient descriptions in deeds, in continuing the transfer of the same property; it imports a yard at the back part of, or behind a house, and belonging thereto; but although formerly used in pleadings, it is now unusual to adopt it, and the word vard is preferred. 1 Chitty's Pr. 177; 2 Ld. Raym. 1399.

BADGER, obsolete, from baggage and bagagier, a carrier of bundler; ona who buys corn and victuals in one place and sells them in another. Stat. 5 & 6 Edw. 6; 3 Eliz. c. 12.

BAGGAGE. Such articles as are carried by a traveller; luggage. Every thing which a passenger carries with him, however, is not bag

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